Why the Anwar Al-Awlaki Assassination Continues to Resonate

It’s been a little more than six months now since American citizen Anwar Al-Awlaki was killed by a drone without receiving due process.  I’ve written about the case many times on this blog even though it’s considerably removed from the type of work I do on a daily basis, and at times I have wondered why the killing of Awlaki was, and continues to be, so disturbing to me.

Essentially, I think the answer is this: that everything I do on a daily basis, and everything that my colleagues on the defense bar do, not to mention everything that talented prosecutors do, is predicated on the idea that due process actually does matter.  We argue about jury instructions because due process matters.  We argue about evidentiary rulings because due process matters.  We argue about jury misconduct because due process matters.

Or at least that’s what we have to believe.

Because being a lawyer day in and day out is not always particularly sexy or thrilling work. It’s a lot of paper, a lot of minutia, and — especially if you are on the defense side of things — a lot of being told that you are wrong and that your arguments are ridiculous.

You do the job, though, because you believe that the principles are important.  You do it because you think due process — meaning real due process, not the post-hoc hodge podge of justifications that were trotted out in Awlaki’s case after he was dead — is the foundational principle of our legal system.

But the killing of Awlaki suggests otherwise.  It suggests that due process is not particularly important, that the legal guarantees of the constitution are mere technicalities that the executive may ignore at will, and that the work criminal attorneys do every day is not actually a meaningful protection against government overreaching.  Because the government will only respect the process if it wants to, and will ignore the process if it deems it expedient to do so.

So what’s the point of doing this work?  It’s not very satisfying to feel like appellate advocacy is just a method of tying a pretty bow around a system that is fundamentally brutal, indifferent and lawless.

This is, of course, not the most critical problem raised by the killing of Awlaki; the mental health of lawyers is ultimately not that important.  But it’s nevertheless a real problem for those of us who are expected to carry on with the day to day operation of the criminal justice system.

It’s hard to consider what happened in the Awlaki case and then go back to invoking the guarantee of “due process”  in other cases, knowing full well how hollow that guarantee has proved to be.